Supreme Court of India
BHAGWAN SARUP NAGAR (D) BY LRSversusRAM KISHAN
- Citation
- 2009 INSC 35
- Decided
- 16 January 2009
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
The High Court’s conclusion that the plaintiff failed to prove ownership was erroneous; the case must be remanded to the High Court for fresh consideration.
Summary
The plaintiff, Bhagwan Sarup Nagar, claimed ownership of a house and had licensed his cousin, Ram Kishan, to occupy two rooms. After revoking the licence on 27 September 1991, the defendant refused to vacate, prompting the plaintiff to sue for a mandatory injunction, possession, and mesne profits. The defendant asserted a claim of adverse possession spanning more than fifty years and denied ever being a licensee. While the trial court acknowledged the plaintiff’s ownership, it ruled against him; the first appellate court reversed that decision and decreed in the plaintiff’s favour. The Punjab & Haryana High Court, on second appeal, held that the plaintiff failed to prove ownership and set aside the first appellate decree. The Supreme Court held that the High Court erred, noting that the first appellate court had affirmed ownership and that the trial court had considered the relevant documents, and therefore remanded the matter for fresh consideration.
Issues considered
- Whether the plaintiff proved his ownership of the property and is entitled to injunction, possession and mesne profits.
- Whether the High Court erred in overturning the first appellate court’s finding of ownership.
- Whether the documents (Ex.01 to D7) were duly considered by the lower courts.
Legislation cited
Subjects
injunctionpossessionmesne profitslicenseadverse possessionownershipSection 100 CPCsecond appealremand
Judgment
[2009] 1 S.C.R. 331
. >- BHAGWAN SARUP NAGAR (D) BY LRS A
v.
RAM KISHAN
;
(Civil Appeal No. 258 of 2009)
JANUARY 16, 2009
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.]
•
Code of Civil Procedure, 1908- $. 100- Second appeal
- Case of plaintiff-owner that defendant-licensee not vacating c
property despite revocation of licence - Suit for injunction,
possession of property and mesne profits by plaintiff - Plea
of adverse possession by defendant - Dismissal of suit even
though holding that plaintiff as owner of property - Suit
decreed in favour of plaintiff by first appellate court - Second D
appeal - Allowed by High Court holding that plaintiff failed to
prove his ownership - On appeal held: Conclusions of High
Court erroneous - It proceeded as if first appellate court
reversed findings as regard ownership and trial court did not
consider the documents - Hence, matter remitted to High E
Court for afresh decision.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 258
of 2009.
"" From the Judgment and final order dated 26.10.2005 of F
the High Court of Punjab & Haryana at Chandigarh in Regular
Second Appeal No. 2696 of 2000.
Himanshu Gupta and Shivaji M. Jadhav for the Appellants.
Pradeep Kumar Arya and Chander Shekhar Ashri for the G
Respondent.
The Judgment of the Court was delivered by
331 H
332 SUPREME COURT REPORTS (2009] 1 S.C.R.
A DR. ARIJIT PASAYAT, J. 1. Leave granted.
.. .
2. Challenge in this appeal is to the judgment of a learned
Single Judge of the Punjab and Haryana High Court allowing
the appeal filed by the respondent. The appeal was filed under
8 Section 100 of the Code of Civil Procedure, 1908 (in short the
'CPC'). Appellant as plaintiff has filed a suit for mandatory
injunction with a prayer that the defendant-respondent be
directed to ensure possession to him of the demised premises
description of which was given in the plaint. He also claimed
C Rs.3,900/- towards mesne profit for use and occupation of the
property QY the respondent. It was the case of the plaintiff that
he was the owner of the house and the defendant was his
cousin and he had inducted him as a licensee in two rooms.
Thereafter, when the defendants started misbehaving, he
issued a notice to him on 27.9.1991 revoking his licence. Since
D he failed to vacate the portion of the house in dispute, mesne lr
profit was claimed and the occupation of the demised property
was also claimed. The defendant took the plea that the property
was exclusively in continuous peaceful possession of the
defendant for last more than 50 years ~s its owners without
E paying rent to anybody including the plaintiff. It was also denied
that he was ever inducted as a licencee. Five issues were
framed by the trial court. It is to be noted that replication was
filed by the plaintiff. After considering the evidence brought on
record it was held that the plaintiff was the owner of the property
F in dispute but all the issues were decided against him. The
issues were as follows:
1. Whether the plaintiff is entitled for the relief of injunction
as alleged in the plaint? OPP.
G 2. Whether the plaintiffs entitled to recover Rs.3,900/- as
mesne profits as alleged in the plaintiff? OPP.
3. Whether the plaintiff has no locus standi to file the
present suit? OPD.
H
BHAGWAN SARUP NAGAR (D) BY LRS v. RAM KISHAN 333
[DR. ARIJIT PASAYAT, J.]
.. 4. Whether the suit of the plaintiffs not maintainable? OPD. A
5. Whether the plaintiff has no cause of action to file the
present suit? OPD.
3. The finding of the trial court was reversed by the First
appellate court and the suit filed by the plaintiff was decreed. B
When the second appeal was admitted, the following question
was formulated:
"Whether the learned lower Appellate Court could reverse
the findings without considering the documents Ex.01, 02 c
and D3."
4. The High Court came to hold that the appeal was bound
to succeed as the plaintiff has failed to prove his ownership.
Mere fact that adverse possession has been claimed by the
defendant paled into insignificance and no benefit of the same D
can be given to the plaintiff.
5. In aupport of the appeal learned counsel for the appellant
submitted that the approach of the High Court was clearly
erroneous. It is not a fact that Exh. D1 to D7 were not E
considered. In fact the trial court observed as follows:
"Now coming to with regard of creation of relationship of
Plaintiff and Defendant as licensor and licensee between
the parties, nothing is stated by the Plaintiff in his pleadings
F
when Defendant was inducted as a licensee in the portion
of the House No. 5912-13 whereas in his statement as
PW-1 he has stated in the cross examination that
Defendant was inducted into .the Property as licensee
about six years earlier. Whereas from the perusal of the
oral as well as documentary evidence produced by the G
Defendant on the file it goes to show that portion of the
house has been coming in possession initially of Ghasi
Ram father of the Defendant and after his death in
possession of the Defendant since 1931. These facts
H
334 SUPREME COURT REPORTS [2009] 1 S.C.R.
A stand proved from the copy of the resolution of the ~. .
committee dated 19-8-31 Ex. D-1 vide which application
of the Defendant for opening the slaughter house in House
N0.5912-13 was rejected. Thus it shows that on 19.8.31
father of he Defendant was in possession of the house on
B 19.8.31. Similarly Defendant has filed a loan application
Ex. D-2 before the secretary Punjab Khadi & Village
Industries Board, Chandigarh for carrying on a business
under the Tanners production Co. Op. Society Ltd. In this
house. Central Sales tax receipt Ex. D-3, electricity bills
c since 1984 on wards in the name of Ghasi Ram Show the
continuous possession of the Defendant in portion of the
house. It is pertinent to mention here that apart form the
bar statement of Plaintiff there is not an iota of supporting
evidence of any person from the locality in order to prove
that Defendant was inducted as a licenses about 5/6 years
D
earlier. Neither any suggestion was put to the Defendant
in cross-examination regarding the creation of the license
about 5/6 years earlier. It is well settled that suggestion not
put up on any point to the Defendant regarding the matter
in dispute. The claim of the Defendant regarding the denial
E of the relationship as licensor and licensee is deemed to
be admitted."
6. Further it appears that the High Court proceeded on an
erroneous impression as if the First appellate court has
F reversed the finding regarding ownership. As a matter of fact
the First Appellate Court had concurred with the finding.
7. It is to be noted that the High Court's observations
regarding non-consideration of Exh.01 to D7 by the trial court,
G are as follows:
"Similarly while deciding question of title, trial court
has not said a word about the documents Ex.01 to D7,
though D1 and D2 were earlier to the filing of the suit by
the respondent in favour of the appellant was not proved
H on record."
BHAGWAN SARUP NAGAR (D) BY LRS v. RAM KISHAN 335
[DR. ARIJIT PASAYAT, J.]
8. The quoted portion of the trial court's judgment shows A
that the conclusions of the High Court are erroneous.
9, As noted above the First Appellate Court also held that
it was established that the plaintiff is the owner of the property
in dispute. The First Appellate Court observed as follows:
B
"The defendant in the written statement claimed his
continuous long possession over the house for the last 56
years without paying any rent. Meaning thereby, the
defendant has taken a plea of adverse possession. In other
words the ownership of the plaintiff stands admitted by the C
defendant. So from every angle it stands proved that the
plaintiff is the owner of the property in dispute."
10. Above being the position the High Court has fallen into
grave error by overlooking the aforesaid conclusions and in 0
allowing the second appeal. ln the aforesaid background we
are of the view that the second appeal needs to be heard afresh
by the High Court. The matter is, therefore, remanded to the
High Court for a fresh consideration in accordance with law.
11. Appeal is allowed. No costs. E
N.J. Appeal allowed.
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